Suit Challenges Appropriateness of Separate School for Retarded

The United States Court of Appeals for the Sixth Circuit is
considering a case that, lawyers say, could further define the
respective authority of parents, school districts, and federal courts
in deciding the proper educational placement of handicapped
students.

The case, Roncker v. Walter, involves a nine-year-old mentally
retarded child, Neill Roncker, whose parents believe he should continue
to be educated in a special-education classroom in a regular elementary
school.

Although his contact with nonhandicapped children is limited to
lunch periods and recess, Neill's parents maintain that he benefits
from the exposure.

Officials of the Cincinnati school district, on the other hand, hold
that Neill, who has an I.Q. of about 30, should attend a separate,
county-operated facility for severely retarded children. The district
also contends that educational experts, not federal courts, should
decide the placement of individual children.

The major issue, according to Barry Co-hen, the lawyer for the
Ronckers, is "the right of handicapped children to go to school with
nonhandicapped children unless there is a demonstrable educational
reason to separate them."

Patricia Morrison, the lawyer representing the Cincinnati school
board, countered, "It gets down to a very fundamental constitutional
question about the division of powers. Can a legislature properly give
to a court the authority to make a discretionary decision like that? We
maintain it should be an executive function.

"What the Sixth Circuit is interested in is the whole issue of
discretion and whether a court should be the one making the decision as
to what is appropriate or whether it should defer to professionals in
school districts," she continued. "It's a very basic legal question in
administering the Education for All Handicapped Children Act [P.L.
94-142]."

Placement Process

The dispute began three years ago, when Neill, who had attended a
private preschool, was ready to enter 1st grade. His parents, Robert
and Mary Ann Roncker, asked Cincinnati school officials to evaluate him
following procedures set out in P.L. 94-142.

The placement committee determined that he should be placed in the
separate facility, which is operated by a Hamilton County
social-service agency but provides instruction. The county facility
hires its own teachers and is not formally connected to the school
system, but the district pays tuition for children who are educated
there, according to Ms. Morrison. She added that officials at the
county facility agreed with the school district's assessment of Neill,
who does not have serious behavioral problems but "needs a lot of
supervision."

Neill's parents immediately challenged the placement through
administrative channels. Although the federal law says that children
should remain in their "current" placement pending resolution of such a
challenge, it makes no specific provision for students enrolling for
the first time.

Parents seldom challenge the recommendations made by placement
committees, Ms. Morrison said, but when they do, "it's quite an
emotional issue."

The school district compromised with the Ronckers, Ms. Morrison
said, and agreed to enroll Neill in special classes at a regular
elementary school until the dispute could be resolved. "We said, 'We
disagree, but we will put him in this other place, which we don't
believe is right because we can't put him in a regular class and you
won't agree to put him where he belongs,"' she recounted. "It's a tough
situation for a school district to be in."

Because of the impasse, the Ronckers sued state and local education
officials, charging violations of P.L. 94-142's requirements that
children be placed in appropriate programs in the least restrictive
environment. Last year, U.S. District Judge Carl Rubin ruled in favor
of the school district and withdrew his earlier certification of the
suit as a class action on behalf of all Ohio children in separate
schools for the mentally retarded.

Little Academic Progress

Judge Rubin considered evidence that Neill has made little academic
progress in the past 18 months at Pleasant Ridge Elementary School, Ms.
Morrison said. Mr. Cohen, however, said that the boy's mother reports
that "he's doing pretty well."

Judge Rubin erred, Mr. Cohen contends, in finding that Cincinnati
school authorities did not abuse their professional discretion in
deciding to place Neill in the separate school. Furthermore, the lawyer
said, the judge should have made a separate finding on the
appropriateness of the boy's placement. "He simply deferred to the
school system," Mr. Cohen said.

The quality of the county-operated facilities is not in question,
Mr. Cohen said; the issue is segregation of handicapped children,
whether the separate school is operated by the school district or some
other agency.

"Our feeling is that the statute places a pretty heavy burden on
anyone who seeks to isolate a handicapped child," Mr. Cohen said. There
are about 10,000 retarded children in separate county-operated schools
in Ohio, he estimated. "To my mind," he added, "the vast majority of
them should be in regular schools. I frankly don't know of very much
you can do educationally in a building that doesn't have nonhandicapped
children in it that you couldn't do in a building that does have
nonhandicapped children in it."

'Appropriate Education'

Mr. Cohen cited an Arkansas case, Springdale School District v.
Grace, in which the trial judge and the United States Court of Appeals
for the Eighth Circuit "indicated that if an appropriate education
could be provided in a public school, the student had to be placed
there even if a better education was provided at a separate
facility."

Ms. Morrison said she doubted that the Sixth Circuit would issue a
ruling in the Roncker case until the Supreme Court has decided Rowley
v. Board of Education of Hendrick Hudson School District, the first
case to reach the High Court on what constitutes an "appropriate"
education for handicapped students. The Justices heard oral arguments
in the Rowley case in March; some legal observers believe a decision is
imminent.

Both Ms. Morrison and Mr. Cohen said that the Roncker case is likely
to end up before the Supreme Court.

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